Monthly Archives: July 2009

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The Court of Appeals recently weighed in on a case we wrote about in September, 2008. In Bazakos v. Lewis, the plaintiff had earlier sued a party for injuries sustained in an auto accident, and during the independent medical exam, claimed the physician injured him.

The trial court found this cause of action to be for medical malpractice and dismissed it based upon a 2 ½- year statute of limitations. The Appellate Division (Second Department) reversed, finding that the plaintiff’s claim was properly brought as a negligence action because there was no physician-client relationship, and therefore held it was timely filed within the 3-year statute of limitations.

The Court of Appeals, however, reversed the Appellate Division, finding that the IME fell under the purview of medical malpractice. The body manipulation performed during Bazakos’ IME constituted “medical treatment by a licensed physician.” The IME itself created a limited physician-patient relationship, where the physician had the duty to perform the examination without causing physical harm to the examinee. As such, the claim was for medical malpractice and time-barred.

In Novak v. Del Savio, plaintiff was an electrician working on a ladder, and was injured when a pipe he had wedged into the ceiling came loose and struck him in the face. The trial court granted summary judgment on plaintiff’s Labor Law §240(1) claim.

Labor Law §240(1) requires owners and contractors to provide workers with appropriate safety devices to protect against gravity-related accidents such as falling from a height or being struck by a falling object.

However, not every object that falls on a worker gives rise to a Labor Law § 240(1) claim. A plaintiff must show that at the time the object fell it was “being hoisted or secured” or “required securing for the purposes of the undertaking.” The plaintiff must also show that the object fell “because of the absence or inadequacy of a safety device” as listed in the statute.

Here, the Appellate Division (2d Dept.) found that the pipe which fell was not in the process of being hoisted or secured, and did not require securing for the purpose of being affixed to the ceiling, and therefore, did not fall within the scope of the statute. The trial court’s decision was reversed.

A defendant who prevailed on a claim for fees and costs to defend litigation on the grounds it was frivolous had its award overturned by the Appellate Division in Ferolito v. Park Hill Association, Inc., — N.J.Super. — , 2009 WL 2208333 (App.Div. 2009).

The claim had been pressed under the frivolous litigation statute, N.J.S.A. 2A:15-59.1. Under this statute, a defendant may be reimbursed when a plaintiff files suit “in bad faith, solely for the purpose of harassment, dely or malicious injury” or if the plaintiff pursues a claim that he knows or should know is without any reasonable basis in law or equity to support it or without a good faith argument that the existing law should be changed. However, if the plaintiff is represented by counsel, the defendant must also prove that the plainitff pursued the claim in bad faith.

Additionally, in order to succeed on such a claim, a defendant must comply with R. 1:4-8 by serving a demand that very specifically addresses the reasons why the claim is frivolous to provide the plaintiff opportunity to withdraw the pleading.

Although the trial court found that litigation to compel a condominium association to install a satellite dish so that a resident could watch Russian language programming was frivolous, the appellate division disagreed. Finding that the litigation was motivated by a goal of great importance to the plaintiff, the court did not find bad faith. Moreover, the letter that demanded the dismissal of the claim addressed different issues than those for which the court actually dimissed the action. Thus, defendant failed to meet the notice requirement.

In Pellicer v. St. Barnabas Hospital, — N.J. –, 2009 WL 2185492 (2009), a $71 million award was entered by the trial court for a serious brain injury to a four month old allegedly deprived of oxygen because of endotracheal tube problems following spinal surgery. The defendants appealed on the grounds that there had been cumulative errors and uneven treatment of the parties by the trial judge.

The Supreme Court agreed with the defendants and specifically found that the jury pool had been tainted by a voir dire process that permitted the entire jury pool to hear numerous comments critical of the specific hospital where the infant was treated and hospitals, doctors and health care providers in general. Rather than conduct sidebars to explore biases of the jurors, the trial court permitted the potential jurors to air their thoughts about medical providers in open court. As a result the Supreme Court had “no confidence” that the jury could disspassionately consider the highly emotional facts presented.

Additionally, the Supreme Court cited other errors that pervaded the trial as well including the trial court’s acquiescence to the plaintiff’s repeated use of inappropriate and irrelevant considerations that inflamed the jury and unequal treatment of the parties in various rulings.

In Gross v. Waywell, a New York federal court recently dismissed a RICO action filed by the owners of a tennis club against its former employees. The decision is notable because in rendering its order, the court cited a number of very interesting facts regarding civil RICO actions.

The RICO statute was originally intended to be used as a law enforcement tool to supplement the government’s efforts to protect the public from criminal conduct by encouraging and enlisting the civil litigation services of “private attorneys general.” But as the Court noted, it instead has been abused by many plaintiffs’ attorneys in their efforts to trigger the treble damage provision or to force venue into federal court.

The Court pointed out that: — 70% of RICO cases were disposed of on motions to dismiss or summary judgment; — 80% of those cases were decided in defendants’ favor; — Plaintiffs prevailed in only 10% of judgments after trial, but only 25% of those judgments were affirmed on appeal — In other words, plaintiffs failed in 98% of civil RICO cases.

Not surprisingly, the Gross Court found that a RICO suit was not the proper forum for a dispute between tennis club owners and employees, and dismissed the Complaint.

In the case of Weaver, et al. v. Harpster, et al., the plaintiff alleged that she was forced to leave her job at a small office because of unwanted (and rejected) sexual advances. She filed suit and alleged violations of the Pennsylvania Human Relations Act or the common law.

The Supreme Court dismissed the lawsuit. It held that companies with less than four employees are not subject to the Pennsylvania Human Relations Act (which prohibits sexual discrimination).

In Ravagnan v. One Ninety Realty Co., the plaintiff claims that she was injured when her foot got caught in a three-inch gap between two wooden shunt boards causing her to fall. The plaintiff sued various defendants alleging that they had notice of the alleged dangerous condition. After discovery, several defendants moved for summary judgment arguing that they did not create the condition, nor did they have notice of the alleged defect. In opposition to the motion, the plaintiff introduced an affidavit from her daughter stating that she observed the gap several months prior. This witness had not been previously identified. In reversing the lower court’s denial of the defendants’ motion, the First Department emphasized the importance of discovery exchanges and responding to court orders. The court went as far as to preclude the plaintiff from offering the affidavit as evidence since the witness had not previously been disclosed, despite court orders directing the exchange of such information.

In the case of Turner Const v. Kemper Ins., American Manufacturers Mutual Insurance Company (“AMMIC”) and Lumbermens Mutual Casualty Company (“LMCC”) (collectively “Kemper”) appealed from a district court order that required them to pay Turner Construction Company (“Turner”) more than $9,750,000 for damages resulting from a fire. The fire occurred at Manhattan’s Central Synagogue as the partial result of the work of Kemper’s insured, Trident Mechanical Systems, Inc. (“Trident”). The court therefore held that the fire “arose” out of Trident’s work and thus awarded insurance coverage to Turner. The court ruled that the phrase “arising out of” only requires “that there be some causal relationship between the injury and the risk for which coverage is provided.”

In Bacic v. New York City Transit Authority, the decedent was found beneath two subway cars, but one of her shoes was found on the platform. There were no witnesses to the accident and it was later determined that the decedent’s blood alcohol level exceeded the legal limit. At the close of evidence the trial court granted the defendant’s motion to dismiss the complaint based on the plaintiff’s failure to make out a prima facie case of negligence. The plaintiff appealed relying on their expert’s testimony that the train’s conductor should have seen the decedent or, at least her shoe, on the platform. The appellate court affirmed the trial court’s decision finding that the plaintiff’s expert’s testimony was speculative and further held that although a deceased plaintiff is held to a lesser standard of proof, the plaintiff still has an obligation to provide some proof from which negligence could reasonable be inferred.

In Hand v. Philadelphia Insurance Company, the New Jersey Appellate Division decided that the “Scutari Amendment,” N.J.S.A. 17:28-1.1(f), could be applied retroactively to an action commenced prior to the statute’s enactment. The Scutari Amendment essentially bars step-down provisions in motor vehicle liability policies issued to corporate or business entities which lower uninsured or underinsured motorist coverage for employees to the limits of coverage available to the employees under their personal policies. The Court’s decision in Hand was in direct disagreement with the recent case of Olkusz v. Brown wherein another panel of the Appellate Division decided that the amendment did not apply retroactively. In Hand, the court disagreed with the Olkusz decision and determined that the legislature implicitly meant for the amendment to be applied retroactively. Of note, despite its conclusion, the Hand court declined to apply the statute retroactively to the facts of that particular case stating that it would have imposed a manifest injustice upon the defendant insurer.